Homes v Newland - [1999] NSWSC 894

Reported Decision: (1999) NSW ConvR 55-918

New South Wales

Supreme Court

CITATION: Homes v Newland [1999] NSWSC 894

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): 2391/99

HEARING DATE(S): 06/08/99

JUDGMENT DATE:
7 September 1999

PARTIES :

Thomas Hughes Homes Pty Limited v Thomas John Newland

JUDGMENT OF: Master Macready at 1

COUNSEL : Mr G. Grant for the plaintiff

SOLICITORS: Stephen Marks Solicitor for the plaintiff
Mr T. Orkizki of Barnetts for the defendant

CATCHWORDS: Conveyancing. Land Titles under the Torrens System.; Caveats against dealings. Building contract providing for a charge over land such land being residential land within the Home Building Act 1997. Held that on its proper construction s 7D of the Home Building Act restricts the caveatable interest to a licence holder who has obtained a judgment or order of a Court.; Interpretation. Application of s 33 of Interpretation Act.

ACTS CITED: Home Building Act 1977
Home Building Amendement Act 1998
Interpretation Act

CASES CITED: Sarasvati v The Queen (1990-91) 172 CLR at 21

DECISION: Para 23

1

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

Tuesday, 7 September 1999.
File No. 2391/99 THOMAS HUGHES HOMES PTY LIMITED v THOMAS JOHN NEWLAND

JUDGMENT
1   MASTER: In this matter on 19 May 1999 His Honour Mr Justice Santow ordered that by way of interim order the operation of Caveat No 5240488W be extended until further order of the Court. The order was made on the ex parte application of the plaintiff and the matter was brought back before me today when an application was made on behalf of the defendant that the order be vacated or, alternatively, under s 74 MA that the plaintiff withdraw the caveat. No motion was filed by the defendant but the parties are happy that the matter be determined on the basis of the defendant's oral application.
2   In the event that the defendant is not successful it is agreed that it will be necessary for the plaintiff to amend the Summons to include a claim for substantive relief in the proceedings.
3   The plaintiff is a builder and the defendant is the proprietor of land over the which the caveat has been lodged claiming an estate or interest under an equitable charge pursuant to cl 20 in a building agreement dated 24 March 1998 made between the plaintiff and the defendant.
4   Clause 20 was in the following terms:-

“If there is an amount outstanding including any legal fees and costs associated with recovering an amount under this Agreement the Owner agrees that the Land on which the Building Works are being undertaken is hereby charged in favour of the Contractor for such outstanding amount. This clause shall not merge on completion.”

5 It has been recognised for many years that such a clause gives a caveatable interest. See for instance Griffiths v Hodge 2 BPR 97134.
6 The defendant's contention is that there is no arguable claim that the plaintiff has a caveatable interest having regard to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] NSWSC 894
Decision Date: 7 September 1999

CaseChat Overview and Summary

Homes v Newland involved a dispute concerning the interpretation of a statutory provision and the rights of a party to lodge a caveat against dealings with land. The case was heard by the Supreme Court of Queensland. The issue was whether the statutory provision in question, section 7D of the Home Building Act 1997, limited the ability of a licence holder to lodge a caveat against dealings with land to instances where the licence holder had obtained a judgment or court order.

The court considered the language of section 7D and its interaction with section 33 of the Interpretation Act. The court found that the proper construction of section 7D restricted the caveatable interest of a licence holder to cases where the licence holder had obtained a judgment or court order. The court rejected the argument that the provision should be interpreted to allow a licence holder to lodge a caveat in any circumstances. The court held that the statutory language was clear and unambiguous and did not require further interpretation.

As a result of the court's decision, the defendant was not entitled to lodge a caveat against dealings with the land in question unless they had obtained a judgment or court order. The court's interpretation of the statutory provision limited the rights of licence holders to protect their interests in the land. The court's decision was based on a careful analysis of the statutory language and the principles of statutory interpretation.

Orders